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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

JON JONES, GINA CARANO, FRANKIE EDGAR, MATT HAMILL, BRIAN STANN, ZUFFA, LLC d/b/a ULTIMATE FIGHTING CHAMPIONSHIP, DANIELLE HOBEIKA, BETH HURRLE, DONNA HURRLE, STEVE KARDIAN, JOSEPH LOZITO, ERIK OWINGS, CHRIS REITZ AND JENNIFER SANTIAGO,

Plaintiffs,

-against-

ERIC T. SCHNEIDERMAN, in his official

capacity as Attorney General of the

State of New

York, and CYRUS R. VANCE, Jr., in his official capacity as District Attorney for the County of New York,

Defendants.

ECF Case

11 Civ. 8215 (KMW) (GWG)

DEFENDANT SCHNEIDERMAN'S MEMORANDUM OF LAW IN SUPPORT OF HIS INITIAL LIMITED MOTION TO DISMISS THE FOURTH AND FIFTH CAUSES OF ACTION IN THE COMPLAINT

JOHN M. SCHWARTZ Special Litigation Counsel of Counsel

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant Schneiderman 120 Broadway - 24th Floor New York, New York 10271 (212) 416-8559

Case 1:11-cv-08215-KMW Document 16 Filed 01/27/12 Page 2 of 28 TABLE OF CONTENTS Page TABLE OF
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
ii
PRELIMINARY STATEMENT
2
THE CHALLENGED STATUTE
4
THE HISTORY AND BASIS OF THE STATUTE
5
A.
The
Enactment of the Legislation
,
5
B.
The
Bases
of the Legislature's Action
6
1. The
Risk of Injury
6
2.
The Effect Upon youth
7
3.
The "Civilization" or "Disgust" Factor
8
THE COMPLAINT
8
ARGUMENT
11
DUE PROCESS AND EQUAL PROTECTION CHALLENGES TO A
STA TUTE MUST FAIL UNLESS THERE IS NO REASONABLY
CONCEIV ABLE STATE
OF FACTS THAT MIGHT JUSTIFY THE LA W
WHEN ENACTED; THE COMPLAINT ALLEGES NO FACTS THAT
WOULD MEET THIS STANDARD EITHER AT THE TIME OF
ENACTMENT OR THEREAFTER
11
A.
The Applicable Standard
11
B.
The
Effect of Post-Legislation Factual Developments
14
C.
The Plaintiffs' Proposed Evidence ofIrrationality
,
18
CONCLUSION
23
i
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TABLE OF AUTHORITIES
Cases
Page(s)
Adams v. New York State Educ. Dept.,
752
F.Supp.2d 420 (S.D.N.Y. 2010)
.14, 16
Albright v. Oliver,
510
U.S. 266 (1994)
11
Alexander v. Whitman,
114F.3d 1392 (3dCir. 1997)
14
Ali v. Division of State Athletic Commission,
308
F. Supp. 11 (S.D.N.Y. 1969)
22
Beatie v. City of New York,
123
F.3d 707 (2d Cir.1997)
.11, 14,20,21
Bishop v. City of New York,
123
F.3d 707 (2d Cir.1997)
20
Chastleton Corp. v. Sinclair,
264
U.S. 543 (1924)
17
City of Cleburne, Texas v. Cleburne Living Center, Inc.,
473
U.S. 432 (1985)
11
Dandridge v. Williams,
397
U.S. 471
18
F.C.C. v. Beach Communications, Inc.,
508
U.S. 307 (1993)
12,23
Ferguson v. Skrupa,
372
U.S. 726 (1963)
18
Heller v. Doe,
509
U.S. 312 (1993)
14,19
Howard v. United States Dep't of Defense,
354
F.3d 1358 (Fed. Cir. 2004)
17
In re Chateaugay Corp.,
53 F.3d 478 (2d Cir. 1995)
11
ii
Case 1:11-cv-08215-KMW Document 16 Filed 01/27/12 Page 4 of 28 Interport Pilots Agency, Inc. v. Sammis,
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Interport Pilots Agency, Inc. v. Sammis,
14 F.3d 133 (2d Cir. 1994)
12, 20
McGowan v. Maryland,
366
U.S. 420 (1961)
11
Minnesota v. Clover Leaf Creamery Co.,
449
U.S. 456 (1981), rehearing denied, 450 U.S. 1027 (1981)
.14
Munn v. Illinois,
94
U.S. 113,24 L.Ed.
77 (1876)
13
Murillo v. Bambrick,
681
F.2d 898 (3d Cir.
1982), cert. denied, 459 U.S. 1017 (1982)
.15
New York State Ass'n of Career Schools v. State Education Dep't,
749
F. Supp. 1264 (S.D.N.Y. 1990)
.14
Reno v. Flores,
507
U.S. 292 (1993)
12
S.P.S. Consultants, Inc. v. Lefkowitz,
333
F. Supp. 1373 (S.D.N.Y. 1971)
13
Schall v. Martin,
467
U.S. 253 (1984)
21
SEG Sports Corp. v. Patterson,
97
Civ. 712 (MGC), 1998 WL 230993 (S.D.N.Y. May 5,1998)
5, 21
SEG Sports Corp. v. State Athletic Commission,
952
F. Supp. 202 (S.D.N.Y. 1997)
:
5, 21
Sharma v. Skaarup Ship Mgt Corp.,
699
F. Supp. 440 (S.D.N.Y. 1988)
2
Smart v. Ashcroft,
401
F .3d 119 (2d
Cir. 2005)
17
Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel,
20
F.3d 1311 (4 th Cir. 1994)
16
Thorn v. New York City Dept. of Social Services,
523
F. Supp. 1193 (S.D.N.Y. 1981)
2
United States v. Acoff,
634
F.3d 200 (2d Cir. 2011)
16
iii
 

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United States v. Carolene Products Co.,

 

304

U.S. 144 (1938)

18

United States v. Comstock,

 
 

_, 130 S.Ct. 1949 (2010) (concurring opinion)

.!3

_

United States v. Then,

56

F .3d 464

(2d Cir. 1995)

16

Vance v. Bradley,

 
  • 440 U.S. 93 (1979)

 

23

Williamson v. Lee Optical of Oklahoma, Inc.,

 
  • 348 U.S. 483 (1955)

 

12, 18,20

United States Constitution

 

Due Process Clause, Fourteenth Amendment, § 1

 

passim

Equal Protection Clause, Fourteenth Amendment, § 1

passim

First Amendment

 

2

Federal Rules of Civil Procedure

 

Fed. R. Civ. Proc. Rules 12(b)(I) and 12(b)(6)

 

1

Rules 12(g) and (h)

2

Rules 12(g)(2) and 12(h)(I)(A)

.2

State Statutes

 

N.Y. Unconsolidated Laws § 8905-a

 

passim

iv

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JON JONES, GINA CARANO, FRANKIE EDGAR, MATT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JON JONES, GINA CARANO, FRANKIE
EDGAR, MATT HAMILL, BRIAN STANN,
ZUFFA, LLC d/b/a ULTIMATE FIGHTING
CHAMPIONSHIP, DANIELLE HOBEIKA,
BETH HURRLE, DONNA HURRLE, STEVE
KARDIAN, JOSEPH LOZITO, ERIK OWINGS,
CHRIS REITZ AND JENNIFER SANTIAGO,
ECF Case
11 Civ. 8215 (KMW) (GWG)
Plaintiffs,
-against-
ERIC T. SCHNEIDERMAN, in his official
capacity as Attorney General of the State of New
York, and CYRUS R. VANCE, Jr., in his official
capacity as District Attorney for the County of
New York,
Defendants.
DEFENDANT SCHNEIDERMAN'S MEMORANDUM OF LAW
IN SUPPORT OF HIS INITIAL LIMITED MOTION TO DISMISS THE
FOURTH AND FIFTH CAUSES OF ACTION IN THE COMPLAINT
Defendant Eric T. Schneidennan, in his official capacity as Attorney General of the State
of New York, submits this memorandum, as directed by the Court, in support of his initial
limited motion, pursuant to Fed. R. Civ. Proc. Rules 12(b)(I) and 12(b)(6), to dismiss the Fourth
and Fifth Causes of Action in the Complaint in this action. At a conference on January 4, 2012,
as confinned by the Minute Entry of said conference, the Court (Wood, J.) directed as follows:
Defendants will submit a limited motion to dismiss addressing
only the issue of whether due process and equal protection analysis
requires the Court to detennine whether there was a rational basis
for the law at issue only at the time it was passed, or whether the
Court must detennine whether there is a rational basis for the law
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at present (in other words, whether the Court should take into
account a change in factual circumstances that makes the law
no longer rational, even if it had a rational basis at the time of
passage).
In compliance with the Court's direction, defendant Schneiderman now moves to dismiss
only the Fourth (Equal Protection) and Fifth (Due Process, irrationality) causes of action in the
Complaint, without prejudice to his right later to move to dismiss the Complaint (I) on grounds
not raised here with respect to the Fourth and Fifth Causes of Action and (2) to seek similar
relief with respect to the First (First Amendment, as applied), Second (First Amendment, facial),
Third (Due Process, vagueness), Sixth (Commerce Clause) and Seventh (Liquor Law) Causes of
Action, notwithstanding the provisions of Fed. R. Civ. Proc. Rules 12(g)(2) and 12(h)(l)(A).1
PRELIMINARY STATEMENT
In 1997 the New York State Legislature enacted N.Y. Unconsolidated Laws § 8905-a,
which prohibits professional "combative fighting," except as expressly permitted by the statute,
thus effectively banning in New York professional matches or exhibitions of the recently
invented "sports" then known as "Ultimate Fighting" ("UF") or "Extreme Fighting," ("EF") and
later repackaged as "Mixed Martial Arts" ("MMA"). The statute was enacted in response to the
Legislature's concerns about (l) the risk of physical harm in such events; (2) the perceived
harmful influence they would have on youth; and (3) the perception that the brutality of the sport
had no place in a civilized society.
The Complaint alleges that now, fourteen years later, the sport as practiced by plaintiffs is
as safe as or safer than other permitted sports, that it sends an inspirational message to young
Notwithstanding Fed. R. Civ. Proc. 12(g) and (h), courts in this district entertain second motions to dismiss when
not interposed for delay and when their consideration will expedite the disposition of the case on the merits. Sharma
v. Skaarup Ship Mgt Corp., 699 F. Supp. 440, 444 (S.D.N.Y. 1988); Thorn v. New York City Dept. of Social
Services, 523 F. Supp. 1193, 1196 n. I (S.D.N.Y. 1981).
1
2
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people and that it is conducted on a professional basis. Since practitioners ofUF/EF/MMA are
neither a "suspect class" nor a "quasi-suspect class" and the sport is not a "fundamental right,"
strict scrutiny of the statute is not required under either the Equal Protection or the Due Process
Clause. Plaintiffs therefore have the burden on their claims that § 8905-a facially violates the
Equal Protection and Due Process clauses of showing that there is no reasonably conceivable
state of facts that could provide a rational basis for the challenged legislation. The rational basis
inquiry looks to the time of the law's enactment. Whether examined at the time of enactment or
later, however, such legislative acts may not be overturned either because unsupported by
empirical evidence or underinclusive, because the legislative judgment was incorrect or ill-
advised or because it did not effectively achieve its purposes. Even if the Complaint's factual
allegations (as opposed to its conclusory assertions) are accepted as true, they do not overcome
the strong presumption of constitutionality to be accorded to legislative acts. Plaintiffs' remedy
if they believe the facts have changed is with the Legislature.
The Complaint alleges that repeal of the challenged prohibition has now passed the State
Senate and has substantial support in the Assembly but has not made it to the floor of the
Assembly for a vote. Therefore, the world's largest corporate promoter of UF and several
fighters and other participants in the "sport" now resort to this Court to challenge the statute's
constitutionality. Plaintiffs' cynical attempt to use this litigation as an instrument in their
lobbying efforts in Albany should not be countenanced. Plaintiffs' claims of violation of the
Equal Protection Clause and of the Due Process clause by reason of alleged irrationality should
be dismissed.
3
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THE CHALLENGED STATUTE
In 1997, the New York Legislature passed and the Governor signed L. 1997, ch. 14, now
§ 8905-a of N.Y. Unconsolidated Laws ("the 1997 Legislation"), in response to the development
of the sport that was then referred to as "Ultimate Fighting" ("UF") or "Extreme Fighting" ("EF")
and that the Complaint now calls "Mixed Martial Arts" ("MMA"). Sections 1 and 2 of § 8905-a
together prohibit the conduct in the State of New York of any "combative sport," which is
defined as "any professional match or exhibition" the rules of which permit "kicks, punches or
blows of any kind" to the opponent's body other than boxing, sparring, wrestling, or martial arts
sanctioned by any of a number of organizations specifically listed in the statute that were
connected to judo, karate, tae kwon do and kenpo. The State Athletic Commission is authorized
to establish a process to allow the inclusion or removal of martial arts organizations from this
list.
Section 3 of § 8905-a provides that a person who "knowingly advances or profits from"
such a combative sport is guilty of a class A misdemeanor and, if convicted twice or more within
a five-year period, of a class E felony. "Advancing" is defined to include conduct directed
toward the creation, establishment or performance of a combative sport, acquisition or
maintenance of premises, paraphernalia, equipment or apparatus therefor, and the "solicitation or
inducement of persons to attend or participate therein," as well as the actual conduct, financing
or promotional phases of the sport. "Profiting from" is defined as accepting or receiving money
or other property with intent, or pursuant to an agreement or understanding, to participate in the
proceeds of a combative sports activity.
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THE HISTORY AND BASIS OF THE STATUTE A. The Enactment of the Legislation

At a hearing on April 18, 1996, The New York State Senate Committee on

Investigations, Taxation and Government Operations, chaired by Senator Roy M. Goodman,

considered the question "Should New York Ban Extreme Fighting?" ("the April 1996 Hearing").

The transcript of this hearing is submitted herewith as Exhibit A to the Declaration of John M.

Schwartz dated January 27, 2012 ("Schwartz Decl."). Thereafter, the Legislature passed, and the

Governor signed on October 9, 1996, L. 1996 Ch. 708 ("the 1996 Legislation"), the text of which

is Schwartz Dec!. Ex. B and which became the predecessor of the 1997 Legislation.

The 1996 Legislation permitted "combative fighting," but provided for its regulation by

the State Athletic Commission, similar to its regulatory powers over boxing. It was not effective

until February 6, 1997, however. Before its effective date the Commission issued temporary

regulations in preparation for an "Ultimate Fighting Championship" match planned for Niagara

Falls on February 7. The then promoter of the "Ultimate Fighting Championship," SEG Sports

COrp.2, was unwilling to comply and immediately sought to enjoin the enforcement of the

regulations. In SEG Sports Corp. v. State Athletic Commission, 952 F. Supp. 202 (S.D.N.Y.

1997), Judge Cedarbaum denied the promoter a preliminary injunction. When the promoter

subsequently sought damages against the individual Commissioners and their counsel, allegedly

incurred from moving the planned match to Alabama, Judge Cedarbaum granted judgment on the

pleadings dismissing the action. SEG Sports Corp. v. Patterson, 97 Civ. 712 (MGC), 1998 WL

230993 (S.D.N.Y. May 5, 1997).

Within a few days after the effective date of the 1996 Legislation (and Judge

2 The SEG group of companies was the predecessor of plaintiff herein Zuffa LLC ("Z uffa") as the owner of the Ultimate Fighting Championship. Complaint ~~ 19,43.

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Cedarbaum's denial of injunctive relief against the Commission's regulations), the Legislature

passed, and the Governor signed on February 25, 1997, the 1997 Legislation at issue in this

action.

B. The Bases of the Legislature's Action

The legislative history of the present law includes the April 1996 Hearing and the

legislative considerations prior to the 1996 Legislation, as well as the deliberations that produced

the final statute. The memorandum of law submitted herein by defendant Cyrus R. Vance, Jr.

("Vance" or "the DA") describes much ofthis history in detail and we do not propose to repeat it

at length here. Relevant to the present motion, however, are the Legislature's motivations and

objectives that can be identified in its consideration and adoption of the 1997 Legislation:

1. The Risk of Injury

One major concern of those legislators considering a ban of the UF/EF type of combat

was the risk of serious physical harm that it posed to its participants. Senator Roy Goodman, who

led the fight against this conduct, repeatedly sought information on the real physical risks of the

sport, including from the editor of the Journal of the American Medical Association and from an

Attending Physician for the State Athletic Commission. Schwartz Ex. A at 11-32. Although

these witnesses occasionally compared UF/EF with boxing, Senator Goodman brought them

back to the point: "[t]he focal point of the question is not to compare the relative merits of the

two forms; it's to determine basically whether Ultimate Fighting poses a threat of severe injury or

death to the participants." Id. Ex. A at 28. 3 In addition to the medical testimony, a representative

of the Attorney General supported a total ban, in part because of the "potential for serious and

irreversible physical harm," id. Ex. A at 35, and counsel representing the Athletic Commission,

  • 3 The American Medical Association had for thirteen years lobbied to have boxing abolished in this country and now opposed Ultimate Fighting as well. Schwartz Decl. Ex. A at 13-14.

6

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Lawrence Mandelker, Esq., testified that both "Ultimate Fighting and Extreme Fighting lack
sufficient rules to protect the health, safety and welfare of contestants," id. Ex. A at 40. When
the 1996 Legislation permitting combative fighting was passed, the Athletic Commission in fact
urged the Governor to veto it, in part because "the sport is inherently unsafe." Id. Ex. C at 1.
Thereafter, when the 1997 Legislation was under consideration, the Consumer Protection Board
expressed concern at the lack of protection to the combatants from "serious physical injury," id.
Ex. D at 000013, Mayor Giuliani complained of the "high risk of bodily injury or death, id. Ex.
D at 000016, and Counsel to the Department of State interpreted the passage of the 1997
Legislation as a determination by the legislature that banning combative sports entirely is in the
interests of "those who might be at physical risk by participating in these events, " among
others, id. Ex. D at 000012.
2. The Effect Upon Youth
In addition, supporters of a ban on UF IEF expressed great concern about "the dangerous
message to our youth" conveyed by "virtual fights to the death." Testimony of Asst. Attorney
General Farley, Schwartz Decl. Ex. A at 37-38; see also, Mandelker Testimony, id. Ex. A at 42
(UF's message is "just the opposite" of that of boxing, wrestling and football of "a disciplined
life, work hard and play by the rules"); Mandelker 7/26/96 letter to Governor, id. Ex. Cat 1
(UFIEF "sends the wrong message to the youth of this State"). Assemblyman Kaufman, the
Sponsor of the 1997 bill in the Assembly, echoed this concern to the Governor in urging its
approval: "To glorify this type of 'blood sport' serves to increase the susceptibility of our youth to
violence and also desensitizes those same impressionable minds to needless brutality." Id. Ex. D
at 000010.
7
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3. The "Civilization" or "Disgust" Factor
Finally, a major theme that runs throughout the legislative history ofthe 1997
Legislation, even apart from the risk of injury or the effect on impressionable youth, is the
revulsion on the part of legislators and others against what they view as a brutal, uncivilized
activity that has no place in modem society, or as described by Senator Goodman is "little more
than human cockfighting." Goodman Letter to Governor, 2/14/97, Schwartz Decl. Ex. D at
000008.
As Assemblyman Kaufman wrote to the Governor, "Extreme Fighting, and any other
activity like it, debases all of us and coarsens our society. Extreme Fighting regresses to a time
when no rules prevailed in the era of bare-knuckle boxing." Id. Ex D at 000010. Governor
Pataki's message approving the 1997 bill stressed the "barbaric" and "savage" qualities ofthe
sport. Id. Ex. D at 000005. One of the medical witnesses at the 1996 hearing placed UF, which
he described as "a throwback to the nineteenth century in this country and to the seventeenth
century in England," in the same "modem continuum" as street fights, barroom fights, spousal
abuse and boxing. Id. Ex. A at 14; see also, Asst. Attorney General Farley Testimony, id. Ex. A
at 38 ("a brutal spectacle that has no place in a modem, civilized society"). The legislative
history as a whole strongly suggests that this moral and aesthetic reaction - which could be
labeled a "civilization" or a "disgust" factor - was an important part of the legislature's and the
Governor's motivation in enacting the 1997 Legislation, a strong sense that society had
progressed beyond an activity that "brings to mind the grotesque spectacle of the Roman
Coliseum in which gladiators fought to the death." Senator Goodman. Id. Ex. A at 7.
THE COMPLAINT
Plaintiffs herein include one corporate promoter ofMMA, Zuffa, LLC ("Zuffa"), alleged
to be "the leading promoter ofMMA contests and exhibitions throughout the world" that "does
8
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business as Ultimate Fighting Championship" ("UFC"), Complaint' 180, as well as individual
fighters, trainers and participants in various aspects of MMA, " 181-231. The UFC name and
business had been launched by Semaphore Entertainment Group ("SEG") in or about 1992, , 19,
and was purchased in 2001 by plaintiff Zuffa, which alleges to have set in motion the "evolution
of the sport," , 43.
The early professional matches in the early 1990's of what plaintiff now calls MMA
were promoted by what plaintiffs characterize as an "ill-advised marketing strategy," advertised
as '''no holds barred' and as blood sport or fights to the death." '23. For example, an early major
tournament in 1993 "was aggressively hyped to stress the most violent possibilities and to
suggest that the participants faced significant danger in the fights." , 20. At the time New York's
ban of professional combative fighting (other than those types expressly permitted) was enacted
in 1997, "MMA was in its infancy, had few rules, and was prohibited in many other states.'" 5.
The Complaint alleges that when the New York legislature enacted L. 1996 Ch. 708,
permitting combative fighting but providing for its regulation, the State Athletic Commission
opposed the bill because "[t]he sport is inherently unsafe" as well as because it "sends the wrong
message to the youth of this state," , 28, and that the support for a ban of combative fighting
(instead of mere regulation), which was enacted the following year, was expressed by public
officials in terms of its "barbaric" and "savage" nature,' 33; "beyond the risk of serious physical
injury to its participants," its "dangerous message to our youth" and the perception that "it is not
a venture that belongs in a civilized society," that it appeals to our "worst and most basic
instincts" and is "blood lust and suffering," , 35.
The Complaint alleges that "New York did not have a basis for its Ban on the day it was
adopted." , 71. It criticizes the medical doctors who testified in favor of a ban at the April 1996
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Hearing for their alleged inexperience, inadequate evidence of injuries, misunderstanding of the

sport and speculation rather than scientific study or analysis, but also picks apart their testimony

to argue that it really supported regulation instead, ~~ 72-78. It even alleges that a "then-

existing" study ranked "martial arts" generally as the "fifth safest" among twenty different sports.

~ 78. It also contends, however, that since the enactment of the 1997 Legislation, MMA has

become "increasingly safe," due to rules, insurance and other measures instituted by "promoters

such as the UFC." ~ 79-89. It alleges that "MMA today has a track record establishing it as safe

as, if not more so than, many legal sporting events," ~ 90, and proposes that "if safety were an

issue," it would be better addressed through regulation than a total ban. ~ 102. In addition,

plaintiffs allege that MMA is "one ofthe most popular spectator sports in the world," ~ 47, and

that "New York legislators who believe violence is the message ofMMA

...

have misread that

message," which the Complaint alleges "for most" is a message of "discipline, challenge and

inspiration." ~ 113.

The Complaint further alleges that bills repealing the prohibitions in § 8905-a have been

passed by the New York State Senate and that although such bills were rejected by the State

Assembly in 2010, one has now been passed out of several committees of the State Assembly

having jurisdiction and a substantial number of members of the Assembly support repeal.

According to the Complaint, however, it "has not been permitted to come up for a vote." ~ 66.

10

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ARGUMENT DUE PROCESS AND EQUAL PROTECTION CHALLENGES TO A STATUTE MUST FAIL UNLESS THERE IS NO
ARGUMENT
DUE PROCESS AND EQUAL PROTECTION CHALLENGES TO A
STATUTE MUST FAIL UNLESS THERE IS NO REASONABLY
CONCEIVABLE STATE OF FACTS THAT MIGHT JUSTIFY THE LAW
WHEN ENACTED; THE COMPLAINT ALLEGES NO FACTS THAT
WOULD MEET THIS STANDARD EITHER AT THE TIME OF
ENACTMENT OR THEREAFTER.
A. The Applicable Standard
The legal standard applicable here is substantially similar for both the Fourth and Fifth
Causes of Action in the Complaint. The Complaint does not suggest that plaintiffs are a "suspect
class" distinguished by race, alienage or national origin that requires "strict scrutiny" of state
action with respect to them, nor a "quasi-suspect class" distinguished by factors such as gender
or illegitimacy, that requires a heightened standard of review. See, City of Cleburne, Texas v.
Cleburne Living Center, Inc., 473 U.S. 432, 440-41 (1985). Nor is there any suggestion that
MMA is a fundamental right "relating to marriage, family, procreation, and the right to bodily
integrity," beyond which the Supreme Court "has always been reluctant to expand the concept of
substantive due process." Albright v. Oliver, 510 U.S. 266, 271-72 (1994). Thus,
the standard of review to be applied to both the equal protection and due process claims
requires only that state legislation be "rationally related to a legitimate governmental purpose."
City of Cleburne, 473 U.S. at 446; Beatie v. City of New York, 123 F.3d 707, 711 (2d Cir.1997).
This "rational basis" test places a heavy burden on the party challenging legislative acts.
See, e.g., McGowan v. Maryland, 366 U.S. 420,424 (1961) (equal protection clause "offended
only if the classification rests on grounds wholly irrelevant to the achievement of the State's
objective"); In re Chateaugay Corp., 53 F.3d 478,486-487 (2d Cir. 1995) (for economic
legislation, substantive due process requires only that it be "supported by a legitimate legislative
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purpose furthered by a rational means"); Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 145
purpose furthered by a rational means"); Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133,
145 (2d Cir. 1994) (legislative acts challenged on substantive due process grounds are "presumed
valid and must be upheld if rationally related to a legitimate governmental objective").
Plaintiffs here have mounted a facial challenge to the 1997 Legislation in their Fourth and
Fifth Causes of Action. Although they expressly characterize their First Amendment and Liquor
Law claims as "as applied to plaintiffs" claims and seek to enjoin the enforcement of § 8905-a
only against them and their activities, see Complaint, First and Seventh Causes of Action
headings, ,-r,-r 242, 314, and Prayer for Relief,-r,-r a, f and g, their equal protection and due process
claims are not so designated. Rather, they attack the statute as entirely irrational under both these
constitutional provisions, id. ,-r,-r 276-302, and demand that it be declared violative of both. To
prevail in such a facial challenge, plaintiffs "'must establish that no set of circumstances exists
under which the [statute] would be valid.'" Reno v. Flores, 507 U.S. 292, 301(1993) (due process
case). As the Supreme Court has stated the rule in an equal protection case,
In areas of social and economic policy, a statutory classification
that neither proceeds along suspect lines nor infringes fundamental
constitutional rights must be upheld against equal protection challenge
if there is any reasonably conceivable state of facts that could provide
a rational basis for the classification.
F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
"This standard of review is a paradigm of judicial restraint." Id. at 314. A law "need not
be in every respect logically consistent with its aims to be constitutional. It is enough that there is
an evil at hand for correction, and that it might be thought that the particular legislative measure
was a rational way to correct it." Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483,
487-88 (1955). Referring to the rule as described in Williamson, Justice Kennedy has recently
described it as "one of the most deferential formulations of the standard for reviewing legislation
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in all the Court's precedents." United States v. Comstock, _

U.S.

_, 130 S.Ct. 1949, 1966

(2010) (concurring opinion) .4

In Williamson, the Supreme Court unanimously upheld an Oklahoma statute that

prohibited opticians from fitting or duplicating lenses without a prescription from an

ophthalmologist or optometrist, even in such acts as fitting old lenses into new frames or

supplying a new lens to replace a lost or broken one. In response to the appellants' due process

challenge, Justice Douglas' opinion recognized that the statute in question "may exact a needless

and wasteful requirement in many cases," but observed that "it is for the legislature, not the

courts, to balance the advantages and disadvantages of the new requirement." 348 U.S. at 487.

The day is gone when this Court uses the Due Process Clause ofthe Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, impro-

vident, or out of harmony with a particular school of

thought. ...

[citations

omitted]. We emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134,24 L.Ed. 77, "For protection against abuses by legislatures the people must resort to the polls, not the courts."

Id. at 488. The Court rejected the appellants' contention under the Equal Protection Clause that

the law discriminated against opticians in favor of sellers of ready-to-wear glasses, speculating

that the ready-to-wear branch of the business "may" present distinct problems of regulation and

stating that

"[ e ]vils in the same field may be of different dimensions and proportions,

requiring different remedies. Or so the legislature might think

Or the

.... refonn may take one step at a time, addressing itself to the phase of the

problem which seems most acute to the legislative mind

.....

The

legislature may select one phase of one field and apply a remedy there, neglecting the others.

Id. at 489 (citations omitted); accord, S.P.S. Consultants, Inc. v. Lefkowitz, 333 F. Supp. 1373,

  • 4 Although recognizing the standard as applicable in challenges to a state's exercise of its own powers, Justice Kennedy's concurrence in Comstock questioned the majority's extension of it to federal legislation in a challenge under the "necessary and proper" clause of Article I of the Constitution.

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1377 (S.D.N.Y. 1971).
Thus, "[t]he Constitutional presumption in this area of the law is that the democratic
process will, in time, remedy improvident legislative choices and that judicial intervention is
therefore generally unwarranted." Beatie, 123 F.3d at 712.
B. The Effect of Post-Legislation Factual Developments
The logic of the rational basis standard compels the conclusion that if there were a
rational basis for the 1997 Legislation at the time it was enacted - i.e., any "rationally
conceivable state of facts" that might support the statute, then later factual developments cannot
retroactively destroy that rational basis. Inherent in the "reasonably conceivable state of facts"
standard is the principle that "a legislative choice is not subject to courtroom factfinding and
may be based on rational speculation unsupported by evidence or empirical data." Heller v. Doe,
509
U.S. 312, 320 (1993)~ accord, Beach Communications,
508 U.S. at 315~ Adams v. New
York State Educ. Dept., 752 F.Supp.2d 420, 459 (S.D.N.Y. 2010). On the other hand, to uphold a
legislative choice, the court need only find some reasonably conceivable state of facts that could
provide a rational basis for the legislative action, "whether or not such reasons underlay the
legislature's action." Beatie, 123 F.3d at 712. As the Third Circuit has put it, a court "is not
entitled to second-guess the legislature on the factual assumptions or policy considerations
underlying the statute" and "[t]he only inquiry permitted is whether the legislature might have
believed that
...
the desired end would be served." Alexander v. Whitman, 114 F.3d 1392, 1406
(3d Cir. 1997) (emphasis added). In the equal protection context, "[i]t is even irrelevant whether
the classification will in fact promote the Legislature's intended purpose." New York State Ass'n
of Career Schools v. State Education Dep't, 749 F. Supp. 1264, 1273 (S.D.N.Y. 1990), citing
Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,464 (1981), rehearing denied, 450 U.S.
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1027 (1981). Thus, whether examined at the time of enactment or later, legislative acts cannot be
1027 (1981).
Thus, whether examined at the time of enactment or later, legislative acts cannot be
overturned for the legislature's mistakes in either facts or policy. Indeed, since it is the
legislature's potential reasoning that is determinative, a court cannot substitute its own perception
of later facts or policy requirements, or its speculation on what a different set of legislators
might do years later, for the judgment actually made in enacting the statute.
[J]ust as the Constitution neither demands nor expects perfection
on the part of a legislature engaged in adopting laws that classify,
so too the Constitution neither demands nor expects omniscient
oversight on the part of the legislature once those laws have taken
effect.
Murillo v. Bambrick, 681 F.2d 898, 911 (3d Cir. 1982), cert. denied, 459 U.S. 1017 (1982).
In Murillo, the Third Circuit reversed the district court's finding that a New Jersey statute
imposing higher court filing fees in matrimonial actions than in other civil cases could no longer
be justified based on the relative costliness to the court of matrimonial cases compared to others
after the statute was enacted. Id. at 910. The Court of Appeals eloquently described the problem
with judicial reassessment of the rational basis of legislation based on subsequent events, even if
the court were persuaded that the statutory fee arrangement could not now be justified:
By concluding, in effect, that New Jersey's Legislature
acted unconstitutionally when it retained in existence a
statute admittedly valid when enacted but arguably
grounded on assumptions that eventually turned out to
have been incorrect, the district court imposed an
unwarranted obligation upon legislative bodies: the
obligation constantly. to reassess the continuing validity
of the factual premises underlying each piece of legislation
enacted over the years. Only through such a painstaking
effort, apparently, could New Jersey have discovered the
alleged error that developed and corrected it, thereby
foreclosing the possibility of judicial intervention and
invalidation.
15
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Id. at 911; see also, Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20
F.3d 1311, 1323-24 (4 th Cir. 1994) (plaintiff must show that "at the time of enactment" of
statutes, "legislature could not reasonably have conceived" that they would benefit the
community).
Courts in this Circuit have repeatedly recognized that "[t]he issue is the rational basis for
the law when passed
...
not looking back with hindsight." Adams, 752 F.Supp.2d at 460
(emphasis added). In Adams, for example, plaintiff teachers had argued that the basis of the
challenged statutes' treatment of New York City teachers differently from teachers elsewhere in
the State had been at enactment its "perceived efficiency," but that it had not in fact "proved to
be efficient." Rejecting consideration ofthese post-legislation events, Judge Marrero dismissed
the equal protection claims. Id.
In United States v. Then, 56 F.3d 464 (2d Cir. 1995), the Second Circuit rejected a
convicted defendant's equal protection challenge to the statutory 100-1 ratio between crack and
powder cocaine sentences, notwithstanding Judge Calabresi's concern in concurrence that what
was now known about crack was different from what was known at the Guideline's adoption. Id.
at 467. Rather, the court relied on its recent decision in another case that "Congress did not act
with discriminatory intent in adopting the sentencing ratio at issue." Id. at 466 (emphasis added);
see also, United States v. Acoff, 634 F.3d 200 (2d Cir. 2011), decided after Congress had
amended the same Sentencing Guideline to reduce the sentences for certain crack offenses and
the district court had refused to apply the former "exaggerated ratio" on the ground that it did
"not make sense at all," id. at 201; again declining to act on Judge Calabresi's discomfort with
sentences under the old law, based on recent information "about the drugs' similarities in terms
of effect and addictiveness" and the racially disparate impact the mandatory minimum sentences
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had on minority communities, id. at 203 (concurring opinion), the Second Circuit reversed,
holding that "'a congressional decision that a statute is unfair, outdated, and in need of
improvement does not mean that the statute when enacted was wholly irrational or, for purposes
of rational basis review, unconstitutional.'" Id. at 203 (emphasis added), quoting Smart v.
Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005) (applying the same principle to an immigration law
amendment).
Similarly, in Howard v. United States Dep't of Defense, 354 F.3d 1358 (Fed. Cir. 2004),
disabled military retirees who, unlike other federal retirees, were statutorily prohibited from
collecting both retirement pay and disability compensation, argued that the "pertinent facts" had
changed since a 1986 decision by the same court (the "Absher" case) had held the statutory
distinction was rationally related to a legitimate governmental interest in limiting public
expenditures. Therefore, the plaintiffs argued, the statute no longer had substantial justification.
The court identified the change in circumstances as a shift in congressional policy, but held that
Congress' decision to modify the prohibition "does not reflect a judgment that the legislation, in
its pre-amendment form, lacked rational support. If the concurrent receipt prohibition was
rational in 1986, when Absher was decided, it is equally rational now, even though Congress has
chosen to alter it." Id. at 1361-62 (emphasis added).
In the early 20 th Century, the Supreme Court expressed a willingness in some cases to
consider certain types of post-legislation events in assessing the continuing validity of statutes.
See, Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-48 (1924) ("a law depending upon the
existence of an emergency or other certain state of facts to uphold it may cease to operate if the
emergency ceases or the facts change even though valid when passed"). Such cases, however,
were the product of an era "when the Court thought the Fourteenth Amendment gave it power to
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strike down state laws 'because they may be unwise, improvident or out of harmony with a

particular school of thought.'

...

That era long passed into history." Dandridge v. Williams, 397

U.S. 471,484-85(1970), quoting Williamson, 348 U.S. at 488; see also, Ferguson v. Skrupa, 372

U.S. 726, 730 (1963) (doctrine that due process authorizes courts to hold laws unconstitutional

when they believe the legislature has acted unwisely "has long since been discarded"). Even in

older cases, however, the Supreme Court recognized that notwithstanding the holding of

Chastleton, "where the legislative judgment is drawn in question, [such inquiries] must be

restricted to the issue whether any state of facts either known or which could reasonably be

assumed affords support for it." United States v. Carolene Products Co., 304 U.S. 144, 154

(1938). Where the validity ofthe statute is challenged "on its face" and the issue is whether the

statute should be changed, "as that decision was for Congress, neither the finding of a court nor

the verdict of a jury can be substituted for it." Id.

C. The Plaintiffs' Proposed Evidence of Irrationality

Although plaintiffs' rambling and prolix Complaint is filled with repetitions and

redundancies, it summarizes in its Fourth Cause of Action the alleged grounds for its contention

that there is no rational basis for the 1997 Legislation for equal protection purposes, ~~ 276-292.

It then repeats and realleges those allegation for its Fifth (due process) Cause of Action, ~ 293,

to which it adds some additional allegations, ~~ 298-302. None of those assertions that refer or

could refer to post-legislation developments, however, even if true, can overcome the rational

basis of the Legislature for the statute it enacted in 1997 or the strong presumption of the statute's

constitutionality.

Plaintiffs' challenge of the rational basis of the 1997 Legislation is in part based on the

alleged inadequacy of the legislative record that preceded it, Complaint ~ 282, and the testimony

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of medical professionals at the April 1996 Hearing, described as "the only evidence-gathering

event of the legislature's consideration of the Ban," which plaintiffs interpret to be that other

sports were more dangerous, id. ~ 283. In addition, they also allege that MMA is as safe as, or

safer than, a variety of other sporting events, as supported by "medical and scientific evidence"

developed since the 1997 Legislation. ~~ 279, 284. As indicated above, however, a fundamental

principle of our rational basis jurisprudence is that lawmakers' decisions may be based on

"rational speculation unsupported by evidence." Beach Communications, 508 U.S. at 315;

accord, Heller, 509 U.S. at 320. "Nor will a statute be overturned on the basis that no empirical

evidence supports the assumptions underlying the legislative choice." Beatie, 123 F.3d at 712. In

Beatie, for example, plaintiffs presented expert affidavits and scientific studies that disputed the

City's materials that supported its ban of cigar smoking in public places. The Second Circuit

held, however, that "no matter how plaintiffs proof is viewed it will not serve to rebut the

presumption that the statute has a rational basis." Id. at 713.

Although medical witnesses who testified at the April 1996 Hearing made comparisons

between UF/EF and boxing or other sports, see, e.g., Schwartz Decl. Ex. A at 26-28, and indeed

there was medical testimony that "Ultimate Fighting is, in fact, a greater risk," id. Ex. A at 28, a

focus of the principal supporters of the bill was whether "there is the possibility of severe and

lasting injury, ifnot death," from this sport, irrespective of its comparison with other sports, id.

Ex. A at 27. As Senator Goodman observed in response to a witnesses' comparisons ofUF to

boxing, ""[t]he focal point of the question is not to compare the relative merits ofthe two forms;

it's to determine basically whether Ultimate Fighting poses a threat of severe injury or death to

the participants." Id. Ex. A at 28. Given the testimony and other information available to the

legislators in 1997, there was clearly a rational connection between the risk of harm from

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combative sports matches or exhibitions, as described to the legislature, and a prohibition of such

events. It is immaterial whether the legislators were mistaken or unwise, either at the time the

statute was enacted or as proven by later events or scientific advances. "The due process clause

'is not a guarantee against incorrect or ill-advised [government] decisions.'" Interport Pilots, 14

F.3d at 144, quoting Bishop v. Wood, 426 U.S. 341, 350 (1976).

Plaintiffs also challenge the rational basis of the 1997 Legislation on the grounds that

MMA is allegedly widely and legally practiced in New York, Complaint ~~ 285, 298; that the

Legislature's concern about the violent message of MMA was unjustified because many other

violent messages now "permeate life" in New York, ~ 301; and that the statute does not shield

children from exposure to MMA

in today's world, ~~ 291, 302. Courts will not strike down a law

as irrational, however, "simply because it may not succeed in bringing about the result it seeks to

accomplish,

...

because the problem could have been addressed in some other way,

...

or

because the statute's classifications lack razor sharp precision

....

" Beatie, 123 F.3d at 712

(citations omitted). As the Supreme Court has explained, "the reform may take one step at a

time, addressing itselfto the phase of the problem which seems most acute to the legislative

mind

....

The legislature may select one phase of one field and apply a remedy there, neglecting

the others." Williamson, 348 U.S. at 489 (citations omitted); accord, S.P.S.Consultants, 333 F.

Supp. at 1377. Indeed, the American Medical Association had been opposed to boxing long

before UF/EF appeared on the scene, Schwartz Decl. Ex. A at 13; that it did not succeed in

persuading the New York Legislature to reimpose a prohibition on boxing (which had been

illegal in New York until early in the twentieth century, id. at 14) does not mean New York

cannot constitutionally address other perceived problems in the field of combative fighting.

Finally, the Complaint attacks the rational basis of the 1997 Legislation on the ground

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that that any safety concerns could be addressed by regulation. Complaint ~ 300. 5 But as the
Supreme Court has observed when asked to review a New York statute that plaintiff contended
was "poor public policy" and "could have been better drafted,"
it is worth recalling that we are neither a legislature charged
with formulating public policy nor an American Bar Association
committee charged with drafting a model statute.
Schall v.Martin, 467 U.S. 253,281 (1984). That a problem could arguably have been addressed
in some other way is no ground for striking a statute. Beatie, 123 F.2d at 712. 6
Thus, none of the quarrels plaintiffs say they have with the 1997 Legislation, even if true,
can support the striking of the statute on equal protection or due process grounds, whether
viewed at the time of its enactment or at a later time. If the rational basis of the statute at the time
of enactment is assumed, none of the alleged post-legislation developments can retroactively
destroy the rational basis the legislature had for passing the law. Even if these allegations were
true, they do not show that "no reasonably conceivable state of facts exists" that could justify the
1997 Legislation. For example, although plaintiffs claim that their brand ofMMA - "Ultimate
Fighting Championship" - is now the "the leading promoter ofMMA contests and exhibitions
throughout the world," Complaint ~ 180, the predecessor owner of that mark did not appear at
the 1996 legislative hearing. The only promoter that was represented was a company known as
Battlecade LLP, the producer of the "the style of combat sport called Extreme Fighting."
Schwartz Oed Ex. A at 44,47-48,57. Indeed, the BattlecadelEF witnesses took pains to
distinguish themselves from UF, id. at 57, of which they were critical, id. at 75, and one witness,
5 The UFC franchise has not always been so friendly to regulation. When New York issued regulations under the
1996 Legislation, plaintiffs predecessor owner of the UFC promptly sued to enjoin their enforcement and for
damages. SEG Sports Com. v. State Athletic Commission, 952 F. Supp. 202 (S.D.NY 1997); SEG Sports Com. v.
Patterson, 97 Civ. 712 (MGC), 1998 WL 230993 (S.D.N.Y. May 5,1998).
6
The Complaint also challenges the 1997 Legislation in its Fifth Cause of Action because of the alleged vagueness
of the statute, Id. ~ 299. However, this claim duplicates the Third Cause of Action, apparently refers to the rational
basis of the statute as enacted and therefore is outside the scope of the limited motion directed by the Court.
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in describing the steps EF was taking to minimize injury, testified that could not attest to what

UF would do, id. at 60. Although the Complaint herein alleges that plaintiff Zuffa, the present

owner ofUF, is the leading MMA promoter in the world, ~ 180, and has set in motion the

"evolution of the sport," ~ 43, it tells us nothing about what the promoters ofEF or of any other

brand of MMA have done or are doing. The Complaint's allegations of the plaintiffs' angelic

qualities, either in 1997 or today, does little if anything to assuage the Legislature's concerns

about the full spectrum of combative fighting events and promotion.

In addition, the legislative history shows that in enacting the law, the Legislature was

moved by not only the risk of serious harm to the combative fighting participants, but also

concern for the violent message conveyed by the sport to young people 7 and revulsion at the

"uncivilized" nature of the sport. Schwartz

Decl,

Ex. D at 000010; Complaint, ~~ 28,35. There

is nothing in the Complaint to suggest that any legislature, in 1997 or today, might not

reasonably find it conceivable that the harmful effects on youth are a potential problem or that

some or all forms ofMMA have no place in a modem civilized society. In this connection, Ali

v. Division of State Athletic Commission, 308 F. Supp. 11 (S.D.N.Y. 1969), is instructive. In

dismissing Muhammad Ali's constitutional challenge to the Commission's refusal to issue him a

New York boxing license after his conviction for refusing to report for military duty, Judge

Frankel cited the state's "scarcely questionable power oftotal prohibition" over the "visibly

barbaric aspects of prize fighting" in finding "obviously sweeping powers of the State to regulate

an activity of this kind." Finding that "it is plain that some fields, including the one before us, are

subject to broad powers for the determination and application of state policy judgments," he

7 In the context of their First Amendment claim, plaintiffs contend that the legislation was largely aimed at MMA's

"message

..

" Complaint ~ 28 ff. Regardless of its effect on that claim, which will be litigated herein at a later time,

concern over of the conduct's effect on youth is undoubtedly a permissible and rational basis for legislation under

the due process and equal protection clauses.

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ruled that the Commission was "entItled to wide freedom both for expert controls and for more

romantic, even 'mid-Victorian' judgments of moral, quasi-aesthetic value." Id. at 16.

CONCLUSION

If plaintiffs believe, as they claim, that the New York Legislature either had insufficient

information when it enacted the 1997 Legislation, or misunderstood or misread information

available to it, or made an illogical decision in banning combative sports such as UF/EF, its

remedy is with the Legislature. If a mistake was made at the enactment of the statute, and

certainly if problems with the law's operation arise thereafter, "[t]he Constitution presumes that,

absent some reason to infer antipathy, even improvident decisions will eventually be rectified by

the democratic process and that judicial intervention is generally unwarranted no matter how

unwisely we may think a political branch has acted.'" Beach Communications, Inc., 508 U.S. at

314, quoting Vance v. Bradley, 440 U.S. 93, 97 (1979). Indeed, plaintiffs have already made

substantial progress toward

obtaining legislative repeal of the

ban. Complaint ,-r 66. It i~ not the

place of this Court to assist them in the completion of the last few steps in their lobbying effort.

The Fourth and Fifth Causes of Action in the Complaint should be dismissed.

Dated:

New York, New York January 27, 2012

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendant

Schneid~rman

By: /'

!

/./1'

D~I

1","'Vb'

'/.-.

HN M. SCHWARTZ I :/Special Litigation Couns 120 Broadway - 24th Floor New York, New York 10271 (212) 416-8559

/'

23